HomeMy WebLinkAboutCC Resolution 10717 (Corp Yard Lease)RESOLUTION NO. 10717
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SAN RAFAEL APPROVING, AND AUTHORIZING THE
MAYOR TO EXECUTE, A LEASE WITH EAST SAN
RAFAEL LAND COMPANY, LLC, FOR PROPERTY
LOCATED AT 2350 KERNER BOULEVARD, FOR USE AS
THE CITY'S CORPORATION YARD
WHEREAS, Article III, Section 5, of the Charter of the City of San Rafael authorizes the
City to lease property for the public benefit; and, Article III, Section 7, of the Charter of the City of
San Rafael authorizes the City to establish and to maintain public buildings and public works; and,
WHEREAS, the City, in conformance with its General Plan as amended by the Downtown
Vision, has sold its current Corporation Yard so as 1) to remove it from the City's Downtown and 2)
to encourage the redevelopment of the former PG&E site in the City's Downtown; and,
WHEREAS, the City desires to enter into a long-term Lease with East San Rafael Land
Company, LLC, for a parcel of property at 2350 Kerner Boulevard on which to construct its new
Corporation Yard; and,
WHEREAS, East San Rafael Land Company LLC desires to lease a portion of its land at
2350 Kerner Boulevard, to the City for the purpose of constructing a new corporation yard; and,
WHEREAS, the City Council of the City of San Rafael hereby finds: 1) that the lease of this
property for a new corporation yard will benefit the public, 2) that the lease of this property is
consistent with the City's General Plan, 3) that the lease of this property is authorized by the City
Charter, 4) that the lease of this property is necessary to the City's mission to provide public services
to its citizens, and 5) that the lease of this property is an integral part of the Corporation Yard
construction project which has already been reviewed and analyzed in conformance with the
California Environmental Quality Act and has been granted a Mitigated Negative Declaration
(Resolution # 10613) on March 20, 2000;
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San
Rafael hereby affirms and declares:
1) That all of the facts recited above are true and correct.
2) That the City Council approves the Lease with East San Rafael Land Company, LLC, a
copy of which is attached hereto, for that parcel of land at 2350 Kerner Boulevard on
which the City intends to construct its new Corporation Yard.
3) That the Mayor is authorized to execute said Lease, with any changes deemed necessary
by legal counsel, with East San Rafael Land Company, LLC and any other documents
necessary to finalize said lease.
I, Jeanne M. Leoncini, Clerk of the City of San Rafael, hereby certify that the foregoing
Resolution was duly and regularly introduced and adopted at a regular meeting of the San Rafael
City Council held on the 2nd day of October, 2000, by the following vote to wit,
AYES: Councilmembers: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: Councilmembers: None
A13SENT: Councilmembers: None
J ANNE M. LED CINL CityClerk
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EXHIBIT B
GROUND LEASE
by and between
CITY OF SAN RAFAEL
("Tenant")
and
EAST SAN RAFAEL LAND COMPANY, LLC
("Landlord")
Municipal Corporation Yard
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TABLE OF CONTENTS
Page
PART 100. DEFINITIONS AND EXHIBITS............................................................................1
Section101.
Definitions...................................................................................................1
Section102.
Exhibits........................................................................................................2
PART 200. BASIC LEASE TERMS......................................................................................... 3
Section201.
Lease of Property.........................................................................................3
Section202.
Lease Term..................................................................................................3
Section203.
Title..............................................................................................................3
Section204.
Condition of Property ..................................................................................4
Section205.
Rent..............................................................................................................4
Section 206.
Advances for Lease Obligations..................................................................
5
Section207.
Net Lease.....................................................................................................5
PART 300. CONSTRUCTION OF IMPROVEMENTS............................................................5
Section 301.
General ConstructionRequirements ............................................................5
Section 302.
Initial Improvements....................................................................................8
Section 303.
Additional Construction on Property...........................................................8
PART 400. USE, CHARACTER, OPERATION AND MAINTENANCE OF
IMPROVEMENTS................................................................................................9
Section401.
Limitation on Use........................................................................................9
Section402.
Use Prohibitions...........................................................................................9
Section 403.
Cessation of Use........................................................................................10
Section 404.
Cost of Operation and Maintenance..........................................................10
Section 405.
Landlord Not Obligated to Repair.............................................................10
Section 406.
Compliance with Laws..............................................................................10
Section407.
Property Taxes..........................................................................................11
Section408.
Tax Receipts..............................................................................................11
Section409.
Right to Cure ..............................................................................................11
Section 410.
Services and Utilities.................................................................................12
.
Section 411.
Hazardous Materials..................................................................................12
Section 412.
Ownership of Improvements and Personal Property.................................15
PART 500. ASSIGNMENT AND SUBLETTING..................................................................15
Section 501.
Prohibition on Assignment and Subletting................................................15
PART 600. TRANSFERS BY LANDLORD...........................................................................16
PART 700. INSURANCE, INDEMNIFICATION, DAMAGE AND
DESTRUCTION....................................................................................................16
Section 701. Required Insurance Policies......................................................................16
Section 702. Tenant's Self Insurance and Insurance by Participation in Joint
PowersAgreement....................................................................................17
Section 703. General Insurance Policy Requirements....................................................19
Section 704. Hold Harmless and Indemnification..........................................................20
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TABLE OF CONTENTS
(continued)
Pane
Section 705. Damage or Destruction...............................................................:..............20
Section 706. Mortgage of Leasehold..............................................................................20
PART 800. SURRENDER; HOLDING OVER.......................................................................21
Section 801.
Surrender of Property.................................................................................21
Section802.
Holding Over.............................................................................................21
PART900. EMINENT DOMAIN............................................................................................21
Section901.
Total Taking...............................................................................................21
Section 902.
Partial Taking.............................................................................................22
Section903.
Temporary Taking.....................................................................................23
Section 904.
Notice of Taking; Single Proceeding.........................................................23
PART1000. DEFAULT............................................................................................................23
Section 1001.
Material Default by Tenant........................................................................23
Section 1002.
Default by Landlord...................................................................................25
PART 1100. GENERAL PROVISIONS....................................................................................25
Section 1101.
Enforced Delay..........................................................................................25
Section 1102.
Estoppel Certificates..................................................................................26
Section1103.
Waiver.......................................................................................................26
Section1104.
Notices.......................................................................................................26
Section 1105.
Attorneys' Fees...........................................................................................27
Section 1106.
Landlord's Covenant of Quiet Enjoyment.................................................27
Section 1107.
Entry by Landlord......................................................................................27
Section 1108.
No Joint Venture ........................................................................................28
Section 1109.
Provisions Subject to Applicable Law.......................................................28
Section1110.
Miscellaneous............................................................................................28
Exhibit A:
Property Description
Exhibit B:
Permitted Exceptions
Exhibit C:
Memorandum of Lease
Exhibit D
Description of Adjacent Property
ii
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GROUND LEASE
This Lease is made as of this day of September, 2000, by and between the CITY
OF SAN RAFAEL (the "Tenant"), a charter city, and EAST SAN RAFAEL LAND COMPANY,
LLC (the "Landlord"), a California limited liability company.
PART 100. DEFINITIONS AND EXHIBITS
Section 101. Definitions
For the purposes of this Lease, the terms set forth below shall have the meanings set forth
below as follows:
(a) "Additional Improvement" is defined in Section 303 of this Lease.
(b) "Adjacent Property" shall mean that certain real property described in the
attached Exhibit D.
(c) "Advances" means all amounts advanced by Landlord pursuant to Section
206 below or similar provisions of this Lease.
(d) "Building Improvements" shall mean the buildings, ancillary structures,
temporary structures, paving, landscaping, retaining walls, materials bins, and fences to be
erected and maintained by Tenant upon the Property, including without limitation, all
replacements and reconstructions thereof.
(e) "City" means the City of San Rafael, a charter city.
(f) "Claim" is defined in Section 411(b)(1) of this Lease.
(g) "Commencement Date" means the later of (i) December 15, 2000; or, (ii)
the first date after December 14, 2000 upon which all of the following have occurred: (A) Tenant
and any other governmental agency having jurisdiction over the Property have granted to
Landlord all Permits, all of which Permits thereafter continue in force and are subject only to
terms and conditions which are satisfactory to Landlord in the exercise of its sole discretion; (B)
The City of San Rafael has extended for one (1) year the allocation of traffic capacity previously
granted to the project through the City's Priority Project Procedure; and, (C) all statutes of
limitations for the filing of a judicial challenge to all such Permits have expired and either no
such challenge has been filed or any challenge which is filed has been finally determined,
without right of further appeal, in favor of enforceability of the Permits, subject only to terms
and conditions which are acceptable to Landlord in the exercise of its sole discretion.
(h) "Development Plan" shall mean the "Development Plan" approved or to
be approved by the City of San Rafael as a part of the zoning of the Property and the Adjacent
Property.
(i) "Event of Material Default" is defined in Section 1001 of this Lease.
0) "Hazardous Materials" is defined in Section 411(b)(2)of this Lease.
(k) "Hazardous Materials Laws" is defined in Section 411(b)(3)of this Lease.
(1) "Improvements" means all improvements constructed and located upon
the Property at any time during the Lease Term, whether the Initial Improvements constructed
pursuant to Section 302 of this Lease or later constructed in the form of Additional Improvement,
or any additional construction, alteration, remodeling or reconstruction as described in Section
303 of this Lease. The Improvements include, without limitation, the Building Improvements.
(m) "Initial Improvements" means the Improvements which Tenant will
initially construct on the Property pursuant to Section 302.
(n) "Landlord" means the East San Rafael Land Company, LLC, a California
limited liability company, or its successors as landlord under this Lease.
(o) "Lease" means this Lease.
(p) "Lease Term" means the term of this Lease as described in Section 202(a)
below.
(q) "Office Project shall mean a development for office uses of not less than
One Hundred Sixteen Thousand Four Hundred Twenty -Seven (116,427) square feet of rentable
area, which may be constructed by Landlord on the Adjacent Property.
(r) "Permits" shall mean all permits and approvals necessary for Landlord to
commence and complete construction of the Office Project.
(s) "Personal Property" is defined in Section 3010) of this Lease. As used in
this Lease, the term "Personal Property" includes all replacements and renewals and all fixtures,
furnishings, equipment and other personal property of Tenant located in, on or about the Property
and the Improvements thereon.
(t) "Property" means the real property in the City of San Rafael, Marin
County, California, described in the attached Exhibit A which is the subject of this Lease.
(u) "Tenant" means City of San Rafael, a charter city.
(v) "Termination Date" means the date the Lease Term ends or terminates as
determined pursuant to Section 202(b) below.
Section 102. Exhibits
The following exhibits are attached to and incorporated into this Lease:
Exhibit A: Property Description
Exhibit B:
PART
Permitted Exceptions
Exhibit C:
Memorandum of Lease
Exhibit D:
Description of the Adjacent Property-
roperty
PART 200. BASIC LEASE TERMS
Section 201. Lease of Property
Upon and subject to the terms, covenants and conditions of this Lease, and in
consideration of the rents to be paid pursuant to this Lease and the covenants of Tenant set forth
herein, Landlord hereby leases the Property to Tenant, and Tenant hereby leases and takes from
Landlord the Property.
Section 202. Lease Term
(a) Duration of Lease Term. Unless earlier terminated or extended pursuant
to the provisions of this Lease, the Lease Term shall be for the period commencing on the
Commencement Date and terminating at midnight on December 31 of the year in which occurs
the fiftieth (50th) anniversary of the Commencement Date.
(b) Termination Date. For the purpose of this Lease, the Termination Date
shall be the last day of the Lease Term described in Section 202(a).
Section 203. Title
(a) Title to Leasehold. Title to the leasehold of the Property is hereby
conveyed by Landlord to Tenant free and clear of all liens, encumbrances, tenants, covenants,
assessments, easements, leases and taxes, except for those title exceptions described in Exhibit
$, and such other matters as Tenant shall consent to in writing.
(b) Limitation Unon Remedies of Tenant as to Leasehold. Tenant shall
purchase a policy of title insurance on its leasehold interest pursuant to this Lease. In the event
that the Property is subject to any liens, encumbrances or defects which are not listed on Exhi it
B the sole remedy of Tenant shall be to make a claim under such policy of title insurance, and
Tenant hereby waives any claim against Landlord with respect to any such lien, encumbrance or
defect. The foregoing notwithstanding, Landlord shall cooperate reasonably with Tenant, at no
expense to Landlord, in endeavoring to resolve any such lien, encumbrance or defect.
(c) Creation of Utilitv Easements. Each party, upon the reasonable request of
the other party, a public utility company or a governmental agency, shall execute any and all
documents necessary for the creation of reasonable utility easements to service the Property or
the Adjacent Property or which are required by law. The foregoing notwithstanding, but subject
to the provisions of Section 204(d), nothing in this Section 203(c) shall require that Landlord
execute any document, or otherwise participate in the creation of, any easement which would be
inconsistent with the orderly and convenient construction and operation of the Office Project or
that Tenant execute any document, or otherwise participate in the creation of, any easement
3
which would be inconsistent with the orderly and convenient construction and operation of a
corporation yard on the Property.
Section 204, Condition of Property
(a) Acceptance of Condition. Tenant hereby agrees to accept possession of
the Property in the condition in which the Property exists on and as of the Commencement Date,
"as is, with all faults." Except as otherwise expressly provided in this Section 204, Landlord
shall not have any obligation at any time to construct any improvements upon, or for the benefit
of, the Property or Tenant.
(b) Rough Grading. Upon the written request of Tenant, Landlord shall rough
grade the Properly to approximate contours described by Tenant, provided that: (i) Landlord
shall not be required to import fill material, whether from the Adjacent Properly or any other
source; and, (ii) Landlord shall not be required to compact the soils on the Property.
(c) Compaction of Soils. All compaction of the soils on the Property shall be
the sole responsibility of Tenant, and shall be performed by Tenant under the supervision of a
licensed geotechnical or civil engineer retained by Tenant at the sole expense of Tenant. If
Tenant so requests, Landlord shall cooperate with Tenant in negotiating a contract for
compaction of the soils on the Property between Tenant and the contractor retained by Landlord
to perform compaction of the soils on the Adjacent Property. Landlord shall have no liability to
Tenant, and Tenant hereby waives any claim against Landlord, for or in connection with: (i) any
defect, inadequacy or condition of the soils on or adjacent to the Property; (ii) for any damage to
the Improvements or any part thereof which may result from or in connection with any defect,
inadequacy or condition of the soils on or adjacent to the Property; or, (iii) any defect or
inadequacy in the contract for the compaction of the soils on the Property or the performance of
such contract by the contractor thereunder.
(d) Stubbing of Certain Utilitv Lines. Landlord shall, at the sole expense of
Landlord, stub water, gas, electric and sewer lines to the boundary of the Property, each sized to
specifications provided by Tenant, subject to the approval of Landlord, which approval shall not
be unreasonably withheld. The location along the boundary of the Property to which such lines
shall be stubbed shall be reasonably determined by Landlord, following consultation with (but
with no requirement for approval by) Tenant.
Section 205. Rent
(a) Amount of Annual Rent. The amount of annual rent for each calendar
year shall be One Dollar ($1.00) throughout the Lease Term, which shall be paid on or before
February 1 of the calendar year following the calendar year for which the rent is being paid.
(b) Additional Rent. All other sums to be paid by Tenant to Landlord
pursuant to this Lease shall be deemed to be rent, and Landlord shall have the same remedies
with respect to any failure to pay any such sum as Landlord has with respect to any failure to pay
annual rent. Additional Rent shall be due and payable in the circumstances and at the times
provided in this Lease.
4
(c) Method of Payment. Tenant shall pay rent to Landlord during the Lease
Term, without deduction or offset whatsoever, in lawful money of the United States of America,
to Landlord at the address for Landlord set forth in Section 1104, or to such other person or at
such other place as Landlord may from time to time designate by notice in writing to Tenant,
such payment to be made in accordance with the terms of this Lease.
Section 206. Advances for Lease Obligations
In addition to, and not by way of limitation of, Landlord's rights under specific provisions
of this Lease, Landlord shall at all times have the right (at its sole election and without any
obligation so to do) to advance on behalf of Tenant any amount payable under this Lease by
Tenant, or to otherwise satisfy any of Tenant's obligations under this Lease, provided that
(except in case of emergency calling for immediate payment) Landlord shall first have given
Tenant no less than thirty (30) days advance written notice of Landlord's intention to advance
such amounts on behalf of Tenant. No advance by Landlord (or failure of Landlord to advance
any sum) shall operate as a waiver of any of Landlord or Tenant's rights under this Lease, and
Tenant shall remain fully responsible for the performance of its obligations under this Lease. All
amounts advanced by Landlord shall be separate from, and in addition to, the rent specified in
Section 205 above and shall be immediately due and payable by Tenant to Landlord. All
amounts advanced by Landlord pursuant to this Section 206 or similar provisions of this Lease
are hereinafter referred to as "Advances."
Section 207. Net Lease
(a) This Lease is a net lease, and, except as otherwise provided in Section
411(d) or Section 411(e), Tenant shall, at its sole expense and without right of reimbursement
from Landlord, bear, and pay when due, each and every cost and expense incurred or to be
incurred in connection with the ownership, improvement, operation and maintenance of the
Property during the Lease Term, including without limitation any taxes, assessments, fees or
charges previously or hereafter levied against the Property or any interest therein or the
development or improvement thereof (but excluding net income, inheritance or corporate
franchise taxes upon Landlord).
(b) The rent and other payments payable to or on behalf of Landlord shall be
paid without notice or demand and without offset, counterclaim, abatement, suspension,
deferment, deduction or defense of any sort.
PART 300. CONSTRUCTION OF IMPROVEMENTS
Section 301. General Construction Requirements
(a) Comuliance with Laws. Issuance of Permits. All Improvements shall be
constructed on the Property by Tenant at the sole expense of Tenant, pursuant to plans and
specifications prepared by Tenant which are approved by Landlord, which approval shall not be
unreasonably withheld or delayed. Such construction shall be in strict compliance with all
5
applicable local, state and federal laws and regulations, including, without limitation, the
mitigation measures imposed as a result of, or in connection with, an Initial Study or any other
environmental review conducted in connection with the issuance of any general plan
amendment, any zoning action (including, without limitation, the approval of the Development
Plan), or any other permit or approval necessary for the development of the Property or, as to any
requirements that apply to both the Property and the Adjacent Property, with such requirements
to the extent that they pertain to the Property. Tenant shall have the sole responsibility for
obtaining all necessary permits and shall make application for such permits directly to the person
or governmental agency having jurisdiction, but Landlord shall cooperate with Tenant (at no
expense to Landlord) to obtain such permits, if Landlord's signature as the owner of the Property
is necessary on applications for permits.
(b) Construction of Certain Improvements. Tenant shall construct, as its sole
expense and at the time that it constructs the Building Improvements (or at such earlier time as
may be required by the terms of any permit or approval), all improvements shown on or
described in the Development Plan as being located upon the Property. Landlord shall construct,
and Tenant shall thereafter maintain in good appearance, condition and repair, all fencing and
landscaping improvements required by the Development Plan to be constructed in the portion of
the "Wetlands Buffer sone," as such area is shown on the Development Plan, lying along the
northerly boundary of the Property.
(c) Construction Safeguards. During the construction of Improvements,
Tenant shall or shall cause its contractors to erect and properly maintain at all times, as required
by the conditions and the progress of work performed by Tenant, all reasonably necessary
safeguards for the protection of workers and the public.
(d) Performance by Tenant. Tenant shall, at its sole expense, comply with all
conditions and requirements imposed by the permitting agency, or agreed to by Landlord in
connection with, the issuance of any permit, approval or other entitlement for the use or
improvement of the Property (whether imposed separately as to Property only or in combination
with other properties). Where any such condition or requirement pertains to the Property and
other property (including, without limitation, the Adjacent Property), the obligation to perform
such condition or requirement shall be reasonably and equitably apportioned as between the
Property and such other property, and Tenant shall, at its sole expense, perform the portion of
such condition or requirement apportioned to the Property (except that Tenant shall not be
required to reimburse Landlord for any applications fees for land use entitlements paid by
Landlord prior to the date of this Lease).
(e) Election of Landlord to Perform. In cases where a condition or
requirement imposed by the permitting agency, or agreed to by Landlord, in connection with the
issuance of any permit, approval or other entitlement for the use or improvement of the Property
is to be performed at the same time as the portion of such condition allocated by Landlord (or
otherwise applicable) to other property, Landlord may elect by written notice to Tenant to
perform the portion of such condition or requirement which would otherwise be performed by
Tenant pursuant to Section 301(d). Upon such election by Landlord, Landlord shall perform the
portion of such condition or requirement which would have otherwise been performed by
Tenant, and Tenant shall promptly reimburse Landlord for the cost to Landlord of such
C1
performance within thirty (30) days of the receipt by Tenant of reasonable evidence from
Landlord of the amount incurred and paid by Landlord in connection with such performance.
(f j Hazardous Materials Continaencv Plan. Prior to the construction of any
Improvements, Tenant shall, to the extent required by any applicable federal, state or local law or
regulation, prepare and implement a Hazardous Materials Contingency Plan which complies with
all applicable federal, state and local regulations and the requirements of all agencies having
jurisdiction, including components such as a site Health and Safety Plan and Hazardous Waste or
Non -Hazardous Waste manifesting procedures. The Hazardous Materials Contingency Plan
shall address specific work activities (such as utility trench excavation, foundation excavation,
other excavation, sampling, temporary storage, transport, and disposal) and shall be subject to
the review and approval of the San Rafael Fire Department before building and site alteration
permits are obtained.
(g) Notice of Completion. Upon completion of any construction, Tenant shall
file or cause to be filed in the Official Records of the County of Marin a notice of completion
with respect to the Improvements.
(h) Discharge of Liens. Subject to the provisions of Section 203, neither
Landlord nor Tenant shall create or permit or suffer to be created or to remain, and will
discharge, any lien (including, but not limited to, the liens of mechanics, laborers, materialmen,
suppliers or vendors for work or materials alleged to be done or furnished in connection with the
Property and the Improvements thereon), encumbrances or other charge upon the Property and
the Improvements thereon, or any part thereof, or upon Tenant's leasehold interest therein;
provided, however, that neither party shall be required to discharge any such liens, encumbrances
or charges as may be placed upon the Property by the act of the other party.
Landlord and Tenant shall each have the independent right to contest in good faith and by
appropriate legal proceedings the validity or amount of any mechanics', laborers', materialmen's,
suppliers' or vendors' lien or claimed lien; provided that the party contesting such claim shall
utilize all reasonable means (including the posting of adequate security for payment) to protect
the Property and any part thereof or Improvements against foreclosure, and shall indemnify and
hold harmless the other party from any adverse effects resulting from such lien.
(i) Protection of Landlord. Nothing in this Lease shall be construed as
constituting the consent of Landlord, expressed or implied, to the performance of any labor or
the furnishing of any materials or any specific improvements, alterations of or repairs to the
Property or the Improvements by any contractor, subcontractor, laborer or materialmen, nor as
giving Tenant or any other person any right, power or authority to act as agent of or to contract
for, or permit the rendering of, any services or the furnishing of any materials in such manner as
would give rise to the filing of mechanics' liens or other claims against the fee of the Property.
Landlord shall have the right at all reasonable times to post and keep posted on the Property any
notices which Landlord may deem necessary for the protection of Landlord and the Property
from mechanics' liens or other claims.
6) Tenant to Furnish and Eauiv Property. Tenant covenants and agrees to
furnish and equip the Property with all Building Improvements, fixtures, furnishings, equipment
7
and other personal property (collectively, 'Personal Property") of a quantity as necessary to
operate a municipal corporation yard and governmental facilities and offices.
(k) Maintenance of Building Improvements. Tenant further agrees at all times
during the Lease Term to maintain, repair and (when necessary) replace the Building
Improvements erected by Tenant on the Property in good condition, appearance and repair, at the
sole expense of Tenant. Landlord acknowledges that the Building Improvements shall be subject
to the effects of ordinary wear and tear and effects of the elements, but only to an extent that
does not cause the Building Improvements to be in less than good condition, appearance and
repair. Landlord acknowledges that the Property is to be used as a corporation yard, which may
affect the appearance of elements of the improvements from portions of the Property itself, but
which shall not affect the obligations of Tenant with respect to the appearance of those portions
of the Property which are visible from the Adjacent Property or the adjacent streets (for example,
the exteriors of the Building Improvements and the perimeter walls and landscaping). Tenant
hereby acknowledges that the value and usefulness of the Office Project which Landlord may
construct on the Adjacent Property will be significantly affected by any failure of Tenant to
perform its obligations pursuant to this Section 301(k), and hereby expressly agrees both that
damages at law would be an inadequate remedy for any breach by Tenant of its obligations
pursuant to this Section 301(k) and that Landlord shall at all times have a right to obtain the
remedy of specific performance with respect to such obligations, without limiting in any way the
other rights, whether in law or equity, which Landlord may have in connection with such a
breach.
(1) Ownership of Building Improvements and Personal Property,. The
Building Improvements and any other fixtures, furnishings, equipment and other personal
property placed in, on or about the Property shall be the Personal Property of Tenant during the
Lease Term. In accordance with the provisions of Section 412, immediately upon the expiration
or earlier termination of this Lease, the Building Improvements shall cease to be personal
property, shall become a part of the Property and ownership thereof shall immediately transfer to
Landlord without further act of Landlord or Tenant and without compensation (except as
otherwise provided in Section 901(b) with respect to a termination of this Lease upon the
occurrence of a taking by an exercise of the power of eminent domain).
Section 302. Initial Improvements
In the manner set forth in this Lease, Tenant shall construct or cause to be constructed a
municipal corporation yard and governmental offices and facilities on the Property.
Section 303. Additional Construction on Property
(a) Svecific Standards. Except as otherwise provided in Section 204, any
Additional Improvements undertaken on or within any portion of the Property shall be
undertaken and completed without contribution from Landlord, in good and workmanlike
manner, and in accordance with any site plans approved by Landlord pursuant to Section 303(b)
below.
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(b) Aunroval of Plans. Prior to commencing construction of any Additional
Improvement, Tenant shall submit to Landlord for Landlord's approval site plans for such
improvements, which approval shall not be unreasonably withheld or delayed. The foregoing
notwithstanding, Landlord shall be entitled to refuse to grant such consent if the proposed
Additional Improvements would, in the reasonable opinion of Landlord, have a material adverse
effect upon the Office Project (including any effect arising from the appearance of the Property
from the Office Project), or Landlord may condition the granting of any such consent to prevent
or ameliorate any such adverse effect. Landlord shall not, however, exercise its discretion for the
purpose of curtailing the use of the Property for the Permitted Uses, although such limitation
shall not prohibit or limit the exercise by Landlord of discretion as to such matters as design,
appearance, noise or dust.
(c) Definition. For the purposes of this Lease, "Additional Improvement"
means (1) any new Building Improvements which were not a part of the Initial Improvements,
(2) any substantial alterations, remodeling or rehabilitation of the interior or exterior of Building
Improvements, or (3) construction of additional parking spaces or facilities. Alteration,
construction, remodeling, or reconstruction not constituting an Initial Improvement or Additional
Improvement and not materially affecting the appearance of the Improvements shall not require
Landlord's approval of plans and specifications.
PART 400. USE, CHARACTER, OPERATION AND MAINTENANCE OF
IMPROVEMENTS
Section 401. Limitation on Use
Tenant may use the Property and the Improvements only for a municipal corporation
yard, governmental offices and similar and related ancillary uses such as parking and
landscaping, and for no other purpose. Tenant may permit other local governmental agencies
primarily serving the residents of the City of San Rafael to use all or a part of the Improvements
for corporation yard purposes. In no event shall any use by any other local governmental agency
include any facility for the storage or treatment of sewage or any Hazardous Materials, although
Tenant may permit agencies performing such functions at other sites to use the Property for
corporation yard purposes, if such other agencies primarily serve the residents of the City of San
Rafael.
Section 402. Use Prohibitions.
Tenant agrees that in connection with the use and operation of the Property and
Improvements, Tenant shall not:
(a) Create, cause, maintain or permit any nuisance in, or about the Property or
Improvements; or
(b) Fail to take all reasonable measures to prevent the emanation from the
Property of any noise, dust, odor or vibration which would be objectionable to a person of
ordinary sensibilities located upon the Adjacent Property or any part thereof; or
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(c) Commit or suffer to be committed any waste in, on or about the Property
or Improvements; or
(d) Store or permit to be stored any materials or equipment in open areas
which are visible from the Adjacent Property; or
(e) Use or allow the Property or Improvements to be used for any unlawful
purpose; or
(f) Permit accumulations of garbage, trash, rubbish or any other refuse which
are unsightly; or
(g) Do or permit to be done anything in any way, which unreasonably disturbs
the occupants of the Adjacent Property.
Section 403. Cessation of Use
In the event that Tenant does not commence to use the Property as its primary municipal
corporation yard within ten (10) years of the date of this Lease or, having commenced such use,
thereafter ceases to use the Property as its primary municipal corporation yard and such cessation
continues for a period in excess of twenty-four (24) months, Landlord may give to Tenant a
written notice stating that Landlord believes that such a cessation has occurred (or, if the use has
not commenced, stating that fact). In the event that Tenant does not commence or recommence
to use the Property as its primary municipal corporation yard within sixty (60) days of the receipt
by Tenant of such a notice from Landlord, Landlord may terminate this Lease by written notice
to Tenant given at any time before Tenant commences or recommences to use the Property as its
primary municipal corporation yard. In no event shall Tenant be entitled to any compensation
from Landlord in connection with such a termination, nor shall Landlord have any liability to
Tenant for any mistaken notice given by Landlord in good faith pursuant to this Section 403.
Section 404. Cost of Operation and Maintenance
As between Landlord and Tenant, all costs incurred in the operation and maintenance of
the Property and Improvements shall be paid by Tenant during the Lease Term.
Section 405. Landlord Not Obligated to Repair
Landlord shall not be obligated to make any repairs, replacements or renewals of any
kind, nature or description whatsoever to the Property or Improvements, and Tenant hereby
expressly waives all right to make repairs at Landlord's expense under Sections 1941 and 1942 of
the California Civil Code, as either or both may from time to time be amended, replaced or
restated.
Section 406. Compliance with Laws
Tenant shall, at Tenant's sole cost and expense, comply with and shall cause any of its
agents, employees, contractors and invitees to comply with all federal, state, county, municipal
and other governmental statutes, laws, rules, orders, regulations and ordinances affecting the
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Property and Improvements, the use thereof, or construction thereon, including those which
require the making or any structural, unforeseen or extraordinary changes, whether or not any
such statutes, laws, rules, orders, regulations or ordinances which may be hereafter enacted were
within the contemplation of the parties at the time of execution of this Lease, or involve a change
of policy on the part of the governmental body enacting the same. The parties acknowledge and
agree that Tenant's obligation to comply with all statutes, laws, rules, orders, regulations and
ordinances as provided in this Section (subject to the limitations contained herein) is a material
part of the bargained -for consideration under this Lease. Tenant's obligations under this Section
shall include, without limitation, the responsibility of Tenant to make substantial repairs or
alterations to the extent provided above, regardless of, among other factors, the relationship of
the cost of curative action to the Rent under this Lease, the length of the then remaining Lease
Term hereof, the relative benefit of the repairs to Tenant or Landlord, the degree to which the
curative action may interfere with Tenant's use or enjoyment of the Premises, and the likelihood
that the parries contemplated the particular law involved.
Tenant shall comply with each and every requirement of all policies of public liability,
fire and other insurance, which at any time may be in force with respect to the Property or the
Improvements.
Section 407. Property Taxes
Landlord acknowledges and agrees that this Lease will create a possessory interest which
may be exempt from taxation due to the City's status as a public body. Subject to rights of
reasonable contest, Tenant agrees to pay and discharge, during the Lease Term, before
delinquency, all taxes, assessments, fees, levies, water and sewer rents, rates and charges, and
other governmental charges of any kind or nature whatsoever (all of the foregoing collectively
called "taxes") levied, charged, assessed or imposed upon or against the Property, the
Improvements, this Lease, the rent due under this Lease or any interest in the Property or the
Improvements, or against the Personal Property. The taxes, assessments, fees, levies or charges
which Tenant shall pay shall include, but not be limited to, any taxes, assessments, fees, levies or
charges imposed in connection with traffic or parking or measures to eliminate or ameliorate
environmental consequences of the development or use of the Property. Subject to rights of
reasonable protest, Tenant shall also timely pay all taxes as relating to the fee interest in the
Property.
Section 408. Tax Receipts
Tenant shall provide to Landlord within thirty (30) days after the date when any such
taxes would become delinquent, official receipts of the appropriate taxing authority or other
evidence showing the payment of such taxes.
Section 409. Right to Cure
If Tenant, in violation of the provisions of this Lease, shall fail to pay and to discharge
any taxes, Landlord may (but shall not be obligated to) pay or discharge such taxes. Any such
amounts paid shall be payable by Tenant to Landlord within thirty (30) days of such payment.
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Section 410. Services and Utilities
Tenant shall pay promptly as the same become due and payable all charges, costs; bills
and expenses of and for water, gas, electricity, sewer, air-conditioning, telephone and all other
public or private services and utilities of whatever kind furnished or supplied to or used by
Tenant or any other party in connection with the use, occupancy, maintenance or operation of the
Property and the Improvements or any part thereof, and shall comply with all contracts relating
to such services and shall do all other things necessary and required for the maintenance and
continuance of such services. Except as otherwise provided in Section 204(d), Landlord shall
not have any obligation with respect to the provision or adequacy of utilities for the Property.
Section 411. Hazardous Materials
(a) Purpose. This Section establishes requirements and procedures to prevent
contamination of the Property and surrounding properties by Hazardous Materials (defined
below); to remediate any Hazardous Materials contamination that may occur; and to provide for
the allocation of costs and liabilities related to Hazardous Materials contamination.
(b) Definitions. The following definitions shall apply in the application of
this Section 411:
(1) "Claim" means any and all claims, losses, damages, liabilities,
fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial
action requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith (including but not limited to attorneys' fees and expenses), arising directly
or indirectly, in whole or in part, out of (a) the presence, at any time and from whatever cause, on
or under the Property of any Hazardous Materials, or any releases or discharges of any
Hazardous Materials on, under or from the Property, or (b) any activity carried on or undertaken
on or off the Property in connection with the handling, treatment, removal, storage,
decontamination, clean-up, transport or disposal of any Hazardous Materials at any time located
or present on or under the Property.
(2) "Hazardous Materials" means any substance defined as "hazardous
wastes," "hazardous substances," "hazardous materials," "toxic substances" or words to that
effect under any applicable current or future federal or state laws or regulations including
petroleum and asbestos.
(3) "Hazardous Materials Laws" means all federal, state and local
laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, as the
same may hereafter be adopted or amended.
(c) Covenants. Tenant covenants and agrees that, throughout the Lease Term:
(1) Tenant shall not permit the Property or any portion thereof to be a
site for the use, generation, manufacture, storage, disposal or transportation of Hazardous
Materials, except for those Hazardous Materials which may be lawfully used in the ordinary
course of business and operation of the Improvements as a municipal corporation yard and/or
governmental offices, but only to the extent that such Hazardous Materials are used, generated,
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manufactured, stored, disposed of and transported in full compliance with the requirements of all
Hazardous Materials Laws;
(2) Tenant shall keep and maintain the Properly in compliance with,
and shall not cause or permit the Property to be in violation of, any Hazardous Materials Laws;
(3) Tenant shall immediately advise Landlord in writing of-
(i)
f
(i) Any release of Hazardous Materials on or under the
Property;
(ii) Tenant's receipt of notice of any and all enforcement,
clean-up, removal or government or regulatory actions
instituted, completed or threatened pursuant to any
applicable Hazardous Materials Laws;
(iii) Tenant's receipt of notice of any and all Claims made or
threatened by any third party against Tenant, Landlord, or
the Property; and,
(iv) Tenant's discovery of any occurrence or condition on any
real property adjoining or in the vicinity of the Property,
that could cause the Property or any part thereof to be
classified as "border -zone property" under the provisions of
California Health and Safety Code Sections 25220 et seq.,
or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any
Hazardous Materials Laws.
(4) Except with respect to any Claim pertaining to Hazardous
Materials brought onto the Property by Landlord, upon institution of any action or proceeding
asserting a Claim, or upon identification by either party of a potential Hazardous Materials
problem caused by Tenant's use of the Property, or upon any other contamination of the Property
by Hazardous Materials which occurs during the Lease Term (except to the extent that the
Hazardous Materials are brought onto the Property by Landlord during the Lease Term), Tenant
shall promptly, at its sole cost, respond to such action or proceeding and, if necessary, prepare a
plan for remediation or settlement of the asserted Claim or potential Hazardous Materials
problem and shall submit such plan for Landlord's approval, which approval shall not be
unreasonably withheld or delayed. Tenant shall thereafter diligently prosecute to completion, at
its sole cost, such approved plan.
(5) Tenant shall indemnify, defend and hold Landlord harmless from
and against any claims, losses, damages, liabilities, fines, penalties, charges, administrative and
judicial proceedings and orders, judgments, remedial action requirements, enforcement actions
of any kind, and all costs and expenses incurred in connection therewith (including but not
limited to attorneys' fees and expenses), arising directly or indirectly, in whole or in part, in
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connection with (a) Tenant's use of the Property, or (b) any other contamination of the Property
by Hazardous Materials which occurs during the Lease Term (except to the extent that the
Hazardous Materials are brought onto the Property by Landlord during the Lease Term).
(d) Landlord Obligations. Upon institution of any action or proceeding
asserting a Claim (or upon identification by either party of a potential Claim) pertaining to
Hazardous Materials brought onto the Property by Landlord, Landlord shall promptly prepare a
plan for remediation or settlement of the asserted Claim or potential Hazardous Material problem
which minimizes disruption to Tenant and shall diligently prosecute to completion, at its sole
cost, such plan. Landlord shall indemnify, defend and hold Tenant harmless from and against
any claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial
proceedings and orders, judgments, remedial action requirements, enforcement actions of any
kind, and all costs and expenses incurred in connection therewith (including but not limited to
attorneys' fees and expenses), arising directly or indirectly, in whole or in part, in connection
with Hazardous Materials brought onto the Property by Landlord. For the purposes of this
Section 411, Landlord shall not be deemed to have brought Hazardous Materials onto the
Property by reason of any such Hazardous Materials migrating from the Adjacent Property,
unless such Hazardous Materials were first brought onto the Adjacent Property by Landlord.
(e) Joint Obligations. Upon institution of any action or proceeding asserting a
Claim or upon identification by either party of a potential Hazardous Materials, to the extent that
such problem pertains to contamination or alleged contamination of the Property by Hazardous
Materials which did not occur during the Lease Term and which was not caused by Landlord or
Tenant, Landlord and Tenant shall cooperate in the preparation of a plan for remediation or
settlement of the asserted Claim or potential Hazardous Material problem which minimizes
disruption to Tenant. Landlord and Tenant cooperate in diligently prosecuting to completion
such plan, and each shall pay one-half of the cost of the required work.
(f) Defense of Claim. In the event that a Claim is made, both Landlord and
Tenant shall have the right to defend the Claim. Any obligation upon Landlord or Tenant under
this Section 411 shall be expressly subject to the right of the obligated party to defend against the
Claim, provided that such party shall take all measures reasonably required to protect the
interests of the other party in connection with such Claim and further provided that such party
shall also take such actions as may reasonably be required to protect the health and safety of
persons occupying the Property or the Adjacent Property.
(g) Cost Recoverv. Landlord and Tenant shall cooperate in seeking cost
recovery, contribution or indemnity for a Claim from third parties who have responsibility or
liability for the Hazardous Materials giving rise to the Claim. In the event that the Claim
pertains to contamination of the Property by Hazardous Materials which occurs during the Lease
Term, the cost of such effort to seek recovery shall be paid by Tenant. In the event that the
Claim pertains to contamination or alleged contamination of the Property by Hazardous
Materials which did not occur during the Lease Term and which was not caused by Landlord or
Tenant, the cost of such effort to seek recovery shall be paid by Landlord and Tenant in equal
shares.
IU
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Section 412. Ownership of Improvements and Personal Property
All Improvements constructed on the Property by Tenant as permitted by this Lease shall,
during the Lease Term, be and remain the property of Tenant subject to the terms and limitations
of this Lease; provided, however, that Tenant shall have no right to waste, destroy, demolish or
remove the Improvements except as specifically provided for in this Lease or otherwise
approved in writing by Landlord, which approval shall not be unreasonably withheld or delayed
if the Improvements are to be replaced by Improvements having approximately equal value and
utility. Upon the expiration of the Lease Term or upon the earlier termination of the Lease
pursuant to the provisions hereof, the Improvements shall become the property of Landlord, and
Tenant shall provide to Landlord the quitclaim deed or other instrument required pursuant to
Section 801. Tenant shall have the exclusive right to claim all tax benefits arising from the
Improvements. The foregoing notwithstanding, at the election of Landlord by written notice to
Tenant given before the expiration of the Lease Term or within one hundred twenty (120) days
following of the earlier termination of the Lease Term, Tenant shall, at its sole cost, remove the
Improvements and restore the Property to a good and safe appearance and condition.
If this Lease is terminated, the Personal Property (excluding the Improvements) shall be
the property of Tenant, and shall be removed from the Property within sixty (60) days of such
termination or expiration. Any Personal Property remaining on the Property after such sixty (60)
day period shall be deemed to be abandoned by Tenant, and Tenant shall be liable for the costs
of removal of all such Personal Property.
PART 500. ASSIGNMENT AND SUBLETTING
Section 501. Prohibition on Assignment and Subletting.
(a) Tenant shall not assign this Lease or any interest therein without the
express written consent of Landlord, which may be given or withheld in the sole discretion of
Landlord. Tenant shall not sublet the Property or any part thereof without the express written
consent of Landlord, which may be given or withheld in the sole discretion of Landlord.
(b) The provisions of Section 501(a) notwithstanding, Tenant may sublet a
portion of the Property to another local governmental agency primarily serving the residents of
the City of San Rafael (a "Permitted Sublessee"), provided that: (i) the sublease shall expressly
state that it is subject and subordinate to all of the use restrictions and other provisions of this
Lease; (ii) the number of vehicular trips generated from the Property does not exceed any
restrictions on the number of such trips (or any subcategory thereof) then applicable to the
Property pursuant to any applicable local, state and federal law or regulation; (iii) the use of the
property by the Permitted Sublessee will not violate any applicable local, state and federal law or
regulation; (iv) no rent or other consideration shall be payable by the Permitted Sublessee to
Tenant or any other party on behalf of Tenant, except that the Permitted Sublessee may
reimburse Tenant for utility costs or similar expenses incurred by Tenant in connection with the
operation of the Property which would not have been incurred in the absence of such subletting
and may further reimburse Tenant for a portion of the cost of the improvements then existing on
the Property and installed by Tenant (to the extent that such improvements are to be used by the
IN
Permitted Sublessee), which portion shall be determined by amortizing on a straight-line basis
without interest over the period commencing as of the completion of the construction of such
improvements and continuing until the expiration of the Term of this Lease; and, (v) the acts of
the Permitted Sublessee shall be deemed to be the acts of Tenant for the purposes of the
indemnity covenants of Tenant under this Lease.
(c) Any assignment or subletting made in contravention of this PART 500
shall be void and shall be deemed to be a default under this Lease, whether or not Tenant knew
of or participated in such assignment or subletting.
PART 600. TRANSFERS BY LANDLORD
In the event of a sale, assignment, transfer or conveyance by Landlord of the fee interest
in the Property or of Landlord's rights under this Lease, Landlord shall be released from any
future liability upon any of the covenants or conditions of this Lease, expressed or implied, in
favor of Tenant, and, in such event, Tenant agrees to look solely to the responsibility of the
successor in interest of Landlord in and to the Property or this Lease. This Lease shall not be
affected by any such sale, and Tenant agrees to attorn to any such purchaser or assignee.
PART 700. INSURANCE, INDEMNIIFICATION, DAMAGE AND DESTRUCTION
Section 701. Required Insurance Policies
Tenant shall maintain and keep in force during the Lease Term, for the mutual benefit of
Landlord and Tenant, at Tenant's sole cost and expense, the following insurance applicable to the
Property and the Improvements thereon:
(a) Commercial General Liabilitv Insurance with limits of not less than Ten
Million Dollars ($10,000,000.00) each occurrence combined single -limit bodily injury and
property damage.
(1) Coverage thereunder shall include contractual liability, personal
injury, owners' and contractors' protection (only during the course of any substantial construction
or reconstruction), products and completed operations coverage.
(2) From time to time during the Lease Term, Landlord may
reasonably increase, by written notice to Tenant, the limits of the insurance required by this
Section 701(a) to compensate for the effects of inflation.
(b) Proberty Insurance of the types and nature and in the respective amounts
as follows:
(1) During the course of any substantial construction or reconstruction,
builders' risk insurance for the amount of the completed value of the improvements on an all-risk
form (excluding earthquake), but subject to standard policy exclusions, insuring the respective
16
interests of Landlord, Tenant and any contractors and subcontractors in and to the Property and
the Improvements.
(2) At all other times, property insurance in an amount not less than
the actual full replacement cost of the Improvements located from time to time in, on or upon the
Property (without any deduction being made for depreciation), excluding uninsurable portions of
the Improvements such as foundations and footings, against the perils of fire, lightning, debris
removal, vandalism, malicious mischief, windstorm, earthquake, flood, theft, mysterious
disappearance and such other hazards and perils as are covered by a Special Form Policy of
Insurance (Broad Form) approved for use in the State of California, but subject to standard
policy exclusions and excluding earthquake insurance if the same is unavailable at commercially
reasonable rates.
(3) To the extent not insured by policies described in Section
701(b)(1) and Section 701(b)(2), Tenant shall insure against damage to or destruction of major
component parts of machinery and equipment insured under a standard form of insurance
commonly known as Boiler and Machinery insurance, in an amount not less than one hundred
percent (1001%) of the actual replacement cost of such parts.
(c) Limitation Uvon Deductible Amounts. At no time shall the amounts of
any deductibles under any policy of insurance required by Section 701(a) exceed the prevailing
amount from time to time for property similar to the Property and Improvements with like
insurance coverage.
Section 702. Tenant's Self Insurance and Insurance by Participation in Joint
Powers Agreement.
(a) Election by Tenant. Subject to the provisions of Section 702(c), Tenant shall
be permitted to self -insure a retention or deductible of up to Five Hundred Thousand Dollars
($500,000.00), or such greater amount as Landlord may approve in the exercise of its reasonable
discretion, against those perils required to be insured against under Section 701(a) if prudent
under the circumstances and provided that, at all times during which such self-insurance is in
effect, the financial condition of Tenant is sufficient to warrant such retention or deductible.
Subject to the provisions of Section 702(d), Tenant may also provide the remainder of the
liability insurance required under Section 701(a) by participating in the California Joint Powers
Risk Management Authority.
(b) Agreement as to Status as Additional Insured. In the event that Tenant elects
to provide any portion of the liability insurance required under Section 701(a) by participating in
the California Joint Powers Risk Management Authority, Tenant shall obtain from the California
Joint Powers Risk Management Authority a written agreement, in form and substance
satisfactory to Landlord in the exercise of its reasonable discretion, that Landlord and its agents
and employees.have the same rights against the California Joint Powers Risk Management
Authority as an addUional insured would have against the issuing insurer under a policy of
commercial general Ymbility insurance.
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(c) Conditions Unon Right of Tenant to Self -Insure. Tenant's right to self -insure
under this Lease shall be conditioned upon each of the following matters: (i) Tenant delivering to
Landlord, at the inception of this Lease and on or before the first (P) day of January of each year
thereafter (A) Tenant's then most recent financial statement certified by independent certified
public accountants and (B) a certificate of insurance or other evidence of the provision of
commercial general liability coverage naming Landlord and its agents and employees as
additional insureds for the remainder of the amount to be insured, whether through a policy of
commercial general liability insurance or through participation in the California Joint Powers
Risk Management Authority; (ii) that there exists no Event of Material Default; and, (iii) that no
event has occurred and no condition exists, which, with the giving of notice or the passage of
time or both, could become an Event of Material Default under this Lease. Landlord shall have
the right, exercisable by written notice to Tenant, to revoke the right of Tenant set forth in
Section 702(a) to self insure by written notice to Tenant given at any time upon the occurrence of
any of the following: (i) Landlord reasonably concluding that the financial condition of Tenant is
such that the protection to Landlord provided by such self insurance is less than that which
would be available if a commercial general liability policy, naming Landlord and its agents and
employees as additional insureds, were obtained by Tenant from an insurer admitted to do
business in the State of California; or, (ii) Tenant has at any time failed to perform promptly any
duty which Tenant has to Landlord pursuant to Section 702(e).
(d) Conditions Unon Right of Tenant as to California Joint Powers Risk
Management Authoritv. Tenant's right under this Lease to provide any portion of the liability
insurance required under Section 701(a) by participating in the California Joint Powers Risk
Management Authority shall be conditioned upon each of the following matters: (i) Tenant
delivering to Landlord, at the inception of this Lease and on or before the first (1S) day of
January of each year thereafter the then most recent financial statement of the California Joint
Powers Risk Management Authority certified by independent certified public accountants; (ii)
that there exists no Event of Material Default; and, (iii) that no event has occurred and no
condition exists, which, with the giving of notice or the passage of time or both, could become an
Event of Material Default under the Lease.
(e) Duties of Tenant. In the event that Tenant so elects to self -insure or to
provide any portion of the liability insurance required under Section 701(a) by participating in
the California Joint Powers Risk Management Authority, then Tenant shall have, and shall
promptly perform each and every of the duties of, an insurer issuing the policy which Tenant has
elected to self -insure or has elected to provide through the California Joint Powers Risk
Management Authority (and Tenant shall have no defense to such duties arising from or in
connection with the Lease, except to the extent that such defense would be available to an
unrelated third -party insurer issuing the required policy of insurance), which policy names
Landlord and its agents and employees as additional insureds, including, without limitation, all
fiduciary duties implied by law and all duties to provide defense and indemnity against claims,
losses or liabilities. The obligations of Tenant to Landlord with respect to any claim, loss or
liably as to which Ten t has elected to provide coverage through the California Joint Powers
Rik Management Authority shall be primary and direct, and not those of a guarantor or surety, it
being agreed that the election by Tenant to provide coverage through the California Joint Powers
Risk Management Authority shall be at the sole risk of Tenant. No delay by the California Joint
18
Powers Risk Management Authority shall affect the direct obligation of Tenant to Landlord with
respect to any claim, loss or liability.
(f) Scope of Coverage. Any self-insurance by Tenant, and any coverage which
Tenant elects to provide through the California Joint Powers Risk Management Authority, shall
comply with all requirements of this Lease with respect to insurance to be provided by Tenant
and shall provide coverage no less restrictive than as provided by standard Insurance Services
Office, Inc. commercial general liability policy form commercially available during the term of
this Lease and shall, at a minimum, be equivalent in coverage to that provided by a commercial
general liability policy as of the date of this Lease. Such self-insurance shall provide Landlord
and its agents and employees with additional insured status as otherwise described in this Lease
as though an insurance policy were in force.
Section 703. General Insurance Policy Requirements
(a) Form of Policies. All insurance provided for in this PART 700 shall be
effected under valid and enforceable policies issued by responsible insurers authorized to do
business in the State of California and to issue policies of the nature and in the liability amounts
required above, provided that Tenant may provide insurance through self insurance or municipal
insurance pool that meets the liability limits set forth in Section 701. Any reference in this Lease
to a particular type of policy of insurance shall be deemed a reference to the most comprehensive
form of that policy then published by the Insurance Services Office, subject to any modifications
to that form required by the laws of the State of California. The policies required pursuant to
Section 701 shall name Landlord and its agents and employees as additional insureds. The
proceeds of all property insurance required pursuant to Section 701(b) shall be payable to
Tenant, and Tenant shall adjust all loss, provided that Tenant shall use all such proceeds for the
reconstruction of the Improvements, except to the extent that such proceeds are paid in respect of
any interruption in, or diminution of, the business operations of Tenant. The foregoing
notwithstanding, but subject to the right of Landlord to make an election as to whether or not the
Improvements are to be removed pursuant to Section 412 and PART 800, in the event that this
Lease is terminated pursuant to the provisions of Section 705 by reason of damage to, or
destruction of, the Improvements, Tenant shall use such portion of such proceeds as is required
to remove all of the Improvements and restore the Property to its condition prior to the
Commencement Date, and Tenant may thereafter retain any remaining portion of the insurance
proceeds paid in respect of Improvements constructed and maintained at the expense of Tenant.
A certificate of each insurance policy shall be provided to Landlord on or before the beginning of
the Lease Term and upon the renewal of each policy. Tenant may provide any insurance
required by a blanket insurance policy covering the Property and the Improvements and any
other properties. All such policies issued by the respective insurers shall contain an agreement
by the insurers that such policies shall not be cancelled or modified to reduce or eliminate
coverage or insured risks without at least thirty (30) days prior written notice to Landlord.
(b) Waiver of Subrogation. Tenant hereby expressly waives on behalf of its
property insurers any right of subrogation against Landlord, and Landlord likewise waives on
behalf of its property insurers any right of subrogation against Tenant, which any such insurers
may have against Landlord or Tenant by reason of any claim, liability, loss or expense arising
under this Lease.
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Section 704. Hold Harmless and Indemnification
(a) Indemnitv by Tenant. Tenant shall indemnify and hold Landlord, and its
respective trustees, agents and employees harmless from and against all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including reasonable attorneys' fees
arising out of the condition of the Property or the use of the Property by Tenant or any sublessee
or any licensee or any contractor, supplier or invitee, which may be imposed upon or incurred by
or asserted against Landlord or its respective trustees, agents and employees, except to the extent
caused by the gross negligence or willful misconduct of Landlord or its respective trustees,
agents or employees, during the Lease Term.
(b) Indemnitv by Landlord. Landlord shall indemnify and hold Tenant, and its
respective officers, agents and employees harmless from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including reasonable attorneys' fees arising
directly out of the gross negligence or willful misconduct. of Landlord or its agents or employees
which may be imposed upon or incurred by or asserted against Tenant or its respective officers,
agents and employees, except to the extent caused by the gross negligence or willful misconduct
of Tenant or its respective officers, agents and employees, during the Lease Term.
(c) Survival of Covenants. The provisions of this Section 704 shall survive
the expiration or other termination of this Lease.
Section 705. Damage or Destruction
If during the Lease Term, the Improvements or any part thereof shall be damaged or
destroyed by fire or other casualty, Tenant may take any of the following actions: (a) promptly
repair or reconstruct the damaged or destroyed Improvements; (b) promptly replace the damaged
or destroyed Improvements with different improvements pursuant to Section 303; or (c) remove
all Improvements (unless Landlord elects not to have the Improvements removed) and terminate
this Lease upon thirty (30) days written notice to Landlord.
Section 706. Mortgage of Leasehold
Tenant shall not mortgage or hypothecate this Lease or the leasehold granted by this
Lease or any interest in either of them.
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PART 800. SURRENDER; HOLDING OVER
Section 801. Surrender of Property
Subject to any election by Landlord to require that Tenant remove the Improvements and
restore the Property to a good and safe appearance and condition pursuant to the provisions of
Section 412, at the end of the Lease Term or other sooner termination of this Lease, Tenant shall
surrender and deliver to Landlord the Property and the possession of the Property, together with
all Improvements, in the condition required for the Property and the Improvements to be
maintained under this Lease, free and clear of all occupancies, and free and clear of all liens and
encumbrances other than those, if any, presently existing or created by Landlord, without
payment or allowance whatever by Landlord on account of any such improvements.
Concurrently with the surrender of the Property, Tenant agrees, if requested by Landlord and for
the benefit of Landlord, to execute, acknowledge and deliver to Landlord a quitclaim deed to the
Property and such instruments as may be reasonably requested by Landlord to evidence or
otherwise effect such passage and vesting of title to the Improvements and Personal Property, if
any, retained on the Property. Tenant shall indemnify, defend and hold Landlord harmless from
any claims, losses, damages or liabilities arising from any failure of Tenant to provide such
quitclaim deed when requested by Landlord in circumstances where the terms of this Lease
require that Tenant deliver such a quitclaim deed to Landlord.
Section 802. Holding Over
If Tenant shall retain possession of the Property or the Improvements thereon or any part
thereof without Landlord's prior written consent following the expiration or sooner termination
of this Lease for any reason, then Tenant shall pay to Landlord one hundred fifty percent (150%)
of the then fair market rental for the Property and the Improvements. Tenant shall also
indemnify and hold Landlord harmless from any loss or liability resulting from delay by Tenant
in surrendering the Property, including, without limitation, any claims made by any succeeding
tenant founded on such delay. Acceptance of rent by Landlord following expiration or
termination shall not constitute a renewal of this Lease and nothing contained in this Section 802
shall waive Landlord's right of reentry or any other right. Tenant shall be only a tenant at
sufferance, whether or not Landlord accepts any rent from Tenant while Tenant is holding over
without Landlord's written consent.
PART 900. EMINENT DOMAIN
Section 901. Total Taking
(a) Effect of Notice of Takina. In the event that any governmental agency
having the power of eminent domain gives any notice of its intention to take all or a substantial
portion of the Property or the fee interest therein by eminent domain, this Lease shall
immediately terminate without further act of Landlord or Tenant, regardless of whether or not a
taking subsequently occurs in connection with such notice. Tenant hereby waives, relinquishes
and conveys to Landlord any claim for the value of the leasehold estate created hereunder.
Subject to the provisions of Section 901(b), the entire award for such taking (including any
21
portion attributable to the Improvements) shall be the property of Landlord, and Tenant shall
execute all documents, if any, reasonably required to confirm that Landlord is entitled to the
entirety of such award.
(b) Portion of Award Allocable to Improvements. The provisions of Section
901(a) notwithstanding, the portion of the award allocable to the cost of constructing the
Improvements then located upon the Property shall be determined and allocated between
Landlord and Tenant in accordance with this Section 901(b). The actual cost to Tenant of
constructing the Improvements which then exist on the Property (but not of the cost of
Improvements which may have been previously located upon the Property, but which have been
destroyed or replaced prior to the date of the termination of the Lease in connection with the
notice of intention to take) shall be ascertained, and the amount of each item comprising such
cost shall be amortized, on a straight-line basis without interest, over the Term of this Lease,
commencing with the date upon which the expenditure for such item was made (on a cash basis)
and continuing until the expiration of the Lease Term. From the portion of the award allocable
to the Improvements then existing on the Property, Landlord shall pay to Tenant an amount equal
to the unamortized portion, as of the date of the termination of this Lease, of the cost to Tenant
of constructing the Improvements which then exist on the Property. The provisions of this
Section 901(b) shall survive any termination of this Lease pursuant to Section 901(a).
(c) Effect of Change in Law. In the event that a governmental entity having
the power of eminent domain is not required to give a notice prior to the effective date of a
taking, or in the event that the provisions of Section 901(a) are for any reason unenforceable in
whole or in part, then a taking of the fee interest in the Property shall operate, without further act
of the parties, to assign to Landlord the interest of Tenant under this Lease and the provisions of
Section 901(b) shall not be applicable. Upon the occurrence of any such assignment, this Lease
shall not be terminated in connection with such taking, and Landlord shall not be required to
perform the covenants of Tenant pertaining to the payment of Rent, the uses of the Property, the
maintenance, repair or replacement of the Property or the Improvements or the insuring of the
Improvements. Notwithstanding such assignment, Tenant (and not Landlord) shall perform all
covenants of Tenant which were first to be performed prior to such assignment. No taking of the
fee interest in the Property by Tenant shall operate to effect a merger of the leasehold estate into
the fee interest.
Section 902. Partial Taking
If less than the whole of the Property is taken under the power of eminent domain during
the Lease Term and this Lease is not terminated as provided in Section 901 hereof, then this
Lease shall terminate only with respect to the portion of the Property taken and this Lease shall
continue in full force and effect with respect to the portion of the Property not taken. Tenant
shall, but only to the extent of the amount of the award received, promptly reconstruct and
restore the portion of the Property not taken and the buildings and improvements located on the
portion of the Property not taken as an integral unit of the same general quality and character as
existed prior to such taking. Such reconstruction and restoration shall be performed in a good
and workmanlike manner and undertaken in accordance with site plans submitted to and
approved by Landlord in accordance with PART 300, and otherwise in accordance with the
applicable provisions of this Lease. The award payable for or on account of such taking shall be
22
obtained and divided between Landlord and Tenant in the manner provided in Section 901
hereof. A taking of a substantial portion of the Property shall be deemed a taking of the whole of
the Property for the purposes of this Lease, and shall be governed by the provisions of Section
901 and not by the provisions of this Section 902.
Section 903. Temporary Taking
If the use of all or any part of the Property is taken under the power of eminent domain
during the Lease Term on a temporary basis for a period of time for less than one (1) year, then
this Lease shall continue in full force and effect and Tenant shall continue to be obligated to
perform and observe all of the agreements, covenants and conditions on the part of Tenant to be
performed and observed as and when performance and observance is due to the full extent that
such agreements, covenants and conditions are physically capable of performance and
observance by Tenant after such taking. The award payable for or on account of such taking
shall be paid to Tenant. Tenant may choose to terminate this Lease for any taking of one (1) year
or longer, upon thirty (30) days written notice to Landlord.
Section 904. Notice of Taking; Single Proceeding
In case of a taping of all or any part of the Property or the Improvements or the
commencement of any proceeding or negotiations which might result in such taking, the party
having notice of such taking or of the commencement of any such proceeding or negotiations
shall promptly give written notice thereof to the other party. In any eminent domain proceeding
affecting the Property or Improvements, both Landlord and Tenant shall have the right to appear
in the proceeding and to defend against the eminent domain action as they deem proper in
accordance with their own interests. Issues between Landlord and Tenant that arise under this
Part 900 shall be joined in any such eminent domain proceeding to the extent permissible under
then applicable rules governing such joinder.
PART 1000. DEFAULT
Section 1001. Material Default by Tenant
(a) Any of the following occurrences or acts shall constitute an "Event of
Material Default" by Tenant under this Lease:
(1) If Tenant at any time during the Lease Term (and regardless of the
pendency of any bankruptcy, reorganization, receivership, insolvency or other proceedings in
law, in equity or before any administrative tribunal which have or might have the effect of
preventing Tenant from complying with the terms of this Lease) shall fail to make payment,
when such payment is due, of any rent, Advances or other payment Tenant is required to pay
pursuant to this Lease and such failure continues for ten (10) days following the date such
amount was otherwise due;
(2) If Tenant fails to observe or perform any of the material covenants,
agreements or obligations of Tenant under this Lease, other than those set forth in Section
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1001(a)(1) above, and such material default is not cured within thirty (3 0) days after receipt of
written notice thereof by Tenant or, as to any curable material default which cannot with
diligence be cured within such 30 -day period, if Tenant shall fail to proceed promptly to cure the
same and thereafter prosecute the curing of such material default with diligence, it being
intended in connection with a material default not susceptible of being cured with diligence
within such period of thirty (3 0) days, that the time within which to cure the same shall be
extended for such period as may be reasonably necessary to complete the curing of the same with
diligence; or
(3) If Tenant shall file a petition in bankruptcy or for reorganization or
for any arrangement pursuant to any present or future federal bankruptcy act or under any similar
federal or state law, or shall be adjudicated as bankrupt or insolvent or shall make an assignment
for the benefit of its creditors, or if a petition or answer proposing the adjudication of Tenant as
bankrupt or its reorganization under any present or future federal bankruptcy act or any similar
federal or state law shall be filed in any court and such petition or answer shall not be discharged
or denied within one hundred twenty (120) days after the filing thereof; or
(4) If a receiver, trustee or liquidator of Tenant or of all or
substantially all of the property of Tenant, including the Property or Improvements, shall be
appointed in any proceeding brought by Tenant, or if any such receiver, trustee or liquidator shall
be appointed in any proceeding brought by a third party against Tenant and if such receiver,
trustee or liquidator shall not be discharged within one hundred twenty (120) days after such
appointment, of if Tenant shall acquiesce in or consent to such appointment.
(b) Upon the occurrence of any such Event of Material Default and as long as
the Event of Material Default continues, in addition to any and all other rights or remedies of
Landlord under this Lease or by law or in equity, Landlord shall have the sole option to exercise
the following rights and remedies:
(1) The right of Landlord to terminate this Lease, in which event
Tenant shall promptly surrender possession of the Property, and the Improvements thereon to
Landlord, and pay to Landlord all rent to the date of such termination and all other payments,
including Advances, due Landlord under this Lease. If Tenant does not so promptly surrender
the Property and the Improvements, Landlord shall have the immediate right to reenter the
Property and take possession thereof and remove all persons therefrom.
(2) The right of Landlord, without terminating this Lease, to enter the
Property and the Improvements thereon and occupy the whole or any part thereof for and on
account of Tenant and to collect said rent and any other rent that may thereafter become payable.
(3) The right of Landlord, even though it may have reentered the
Property and the Improvements pursuant to Section 1001(b)(2) above, to thereafter elect to
terminate this Lease.
(4) Prior to exercising the remedies set forth in Section 1001(b) above
Landlord shall give Tenant not less than thirty (30) days prior written notice (which may be
given concurrently with giving Tenant notice of an Event of Material Default) of Landlord's
24
intent to exercise its remedies under this Section 1001, which notice shall specify the remedy or
remedies Landlord intends to exercise.
(c) In the event Landlord reenters the Property and the Improvements
pursuant to the provisions of Section 1001(b)(2) above, Landlord shall not be deemed to have
terminated this Lease, and the liability of Tenant thereafter to pay rent, Advances and other sums
payable under this Lease shall continue unless Landlord notifies Tenant in writing that Landlord
has so elected to terminate this Lease pursuant to Section 1001(b)(3) above.
Section 1002. Default by Landlord
In the event Landlord shall fail to perform or observe any of the material covenants or
provisions contained in this Lease on the part of Landlord to be performed or observed within
thirty (30) days after written notice from Tenant to Landlord specifying the particulars of such
material default or breach of performance, or if more than thirty (30) days shall be reasonably
required because of the nature of the material default, if Landlord shall fail to proceed diligently
to cure such material default after such notice, then in that event Tenant shall have the remedy of
specific performance and, in addition, Tenant shall be entitled to terminate this Lease upon
giving Landlord not less than thirty (30) days prior notice of Tenant's intention to terminate this
Lease for such material default. In no event shall Landlord have any liability to Tenant for any
consequential damages whatsoever.
PART 1100. GENERAL PROVISIONS
Section 1101. Enforced Delay
In addition to specific provisions of this Lease, performance by any party shall not be
deemed to be in default where delays in taking required actions are due to war; insurrection;
strikes; lock -outs; riots; floods; earthquakes; fires; quarantine restrictions; casualties; acts of
Gad; acts of the public enemy; epidemics; government restrictions or priorities; freight
embargoes, shortage of labor, materials or tools; unusually inclement or severe weather; lack of
transportation; government restrictions or priorities; court order; or any other similar causes
beyond the control or without the fault of the party claiming an extension of time to perform. An
extension of time for any cause will be deemed granted if notice by the party claiming such
extension is sent to the other party within a reasonable time after a party becoming aware of the
commencement of the cause and such extension of time is not rejected in writing by the other
party within thirty (30) days of receipt of the notice. The foregoing notwithstanding; (i) any lack
of funds shall not be deemed to be a cause beyond the reasonable control of the party lacking the
funds; (ii) the provisions of this Section 1101 shall not apply to any required payment, whether
such payment is to a party to this Lease or to any other person or entity; and, (iii) no ordinance,
policy, rule or restriction imposed by the City of San Rafael or the San Rafael Redevelopment
Agency shall be deemed a "governmental restriction or priority" or a cause "beyond the control
or without the fault" of Tenant, as applied to the obligations of Tenant (but not landlord)
pursuant to this Lease. Times of performance under this Lease may also be extended by written
agreement of Landlord and Tenant.
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Section 1102. Estoppel Certificates
Either party to this Lease shall, promptly upon the request of the other party, execute,
acknowledge and deliver to or for the benefit of the other party or to or for the benefit of any
actual or prospective Lender, at any time, from time to time, and at the expense of the party
requesting a certificate as herein below described, promptly upon request, its certificate
certifying (1) that this Lease is unmodified and in full force and effect (or, if there have been
modifications, that this Lease is in full force and effect, as modified, and stating the
modifications), (2) the dates, if any, to which all amounts due hereunder have been paid, (3)
whether there are then existing any charges, offsets or defenses against the enforcement of any
agreement, covenant or condition hereof on the part of the party requesting the certificate known
to the party delivering the certificate in the performance or observance of any agreement,
covenant or condition hereof to be performed or observed and whether any notice has been given
of any default which has not been cured (and, if so, specifying the same), and (4) such other
reasonable matters concerning this Lease or the Property as either party may request. Any such
certificate may be relied upon by a prospective purchaser, mortgagee, lender or trustee or
beneficiary under a deed of trust of the Property or the Improvements or the leasehold estate
hereunder or any part thereof.
Section 1103. Waiver
No waiver of any default under this Lease shall constitute or operate as a waiver of any
subsequent default hereunder, and no delay, failure or omission in exercising or enforcing any
right, privilege or option under this tease shall constitute a waiver, abandonment or
relinquishment thereof or prohibit or prevent any election under or enforcement or exercise of
any right, privilege or option hereunder. No waiver of any provision hereof by Landlord or
Tenant shall be deemed to have been made unless and until such waiver shall have been reduced
to writing and signed by Landlord or Tenant, as the case may be. The receipt and acceptance by
Landlord of any amount owing under this Lease with knowledge of any default under this Lease
shall not constitute or operate as a waiver of such default. Failure by Landlord or Tenant, as the
case may be, to enforce any of the terms, covenants or conditions of this Lease for any length of
time or from time to time shall not be deemed to waive or decrease the right of Landlord to insist
thereafter upon strict performance by Tenant.
Section 1104. Notices
If at any time after the execution of this Lease it shall become necessary or convenient for
one of the parties to this Lease to serve any notice, demand or communication upon the other
party, such notice, demand or communication shall be in writing and shall be served personally,
or dispatched by certified United States mail, return receipt requested, postage prepaid, or
reputable overnight service and addressed to:
Tenant: City of San Rafael
1400 Fifth Avenue
San Rafael, California 94902
Attn: City Attorney
FX -1-
Landlord: East San Rafael Land Company, LLC
or to such other address as either party may have furnished to the other in writing as a place for
the service of notice. Any notice so mailed shall be deemed to have been given on the delivery
date or the date delivery is refused by the addressee, as shown on the return receipt.
Whenever the approval, consent or other action of a party will be deemed to be given or
taken within a period of time, pursuant to a provision of this Lease, the item submitted or request
for action shall be made in writing to such party and shall be accompanied by written notice
stating that it is being submitted or requested pursuant to a provision of this Lease identified in
such notice and stating that such item will be deemed approved or that a specified action will be
deemed taken within an identified period of time (as specified by such Lease provision), unless
objection is made or other action taken within the time stated in such notice.
Section 1105. Attorneys' Fees
In the event of any action or proceeding at law or in equity between Landlord and Tenant
to enforce any provision of this Lease or to protect, interpret or establish any right or remedy of
either party hereunder, the unsuccessful party to such litigation shall pay to the prevailing parry
all costs and expenses, including reasonable attorneys' fees incurred therein by such prevailing
party, and if such prevailing party shall recover judgment in any such action or proceeding, such
costs, expenses and attorneys' fees shall be included in and as a part of such judgment.
Section 1106. Landlord's Covenant of Quiet Enjoyment
Upon Tenant paying the rent, Advances and other amounts payable hereunder and
observing and performing all of the covenants, conditions and provisions on Tenant's part to be
observed and performed hereunder, Tenant shall peaceably hold and quietly enjoy the Property
for the entire Lease Term hereof and any extensions without hindrance, molestation or
interruption by Landlord or any party claiming through or under Landlord. The foregoing
notwithstanding, the rights of Tenant with respect to liens, encumbrances or defects in or on the
title of Landlord shall be governed by the provisions of Section 203(b), and not by the provisions
of this Section 1106.
Section 1107. Entry by Landlord
Landlord and its authorized representatives reserve, and shall at all times have, the right
to enter upon the Property and the Improvements, upon reasonable notice and opportunity to be
accompanied by Tenant's representatives, at all reasonable times to inspect the same, to
determine compliance with the terms of this Lease, to show the Property and the Improvements
to prospective purchasers, mortgagees, lenders or tenants, or to post notices, including, without
limitation, notices of nonresponsibility, all the foregoing without abatement of rent. Landlord
shall indemnify and hold harmless Tenant, and its respective subtenants, officers, employees,
contractors and agents from and against all liabilities, damages, claims and expenses (including
27
reasonable attorneys' fees) to third parties arising out of Landlord's entry upon the Property and
Improvements pursuant to this Section 1107.
Section 1108. No Joint Venture
It is agreed that nothing contained in this Lease shall be deemed or construed as creating
a partnership or joint venture between Landlord and Tenant or between Landlord and any other
party or cause Landlord to be responsible in any way for the debts or obligations of Tenant or
any other party.
Section 1109. Provisions Subject to Applicable Law
All rights, powers and remedies provided in this Lease may be exercised only to the
extent that the exercise thereof does not violate any applicable law and is intended to be limited
to the extent necessary so that such exercise will not render this Lease invalid, unenforceable or
not entitled to be recorded under applicable law. If any Lease Term shall be held to be invalid,
illegal or unenforceable, the validity of the other terms of this Lease shall in no way be affected
thereby. Whenever the consent or approval of Landlord or Tenant is required under this Lease,
such consent or approval shall not be unreasonably withheld or delayed unless another standard
for consent or approval shall be expressly set forth. At all times Landlord and Tenant shall deal
with each other fairly and in good faith, although nothing in this Section 1109 shall prevent or
delay Landlord in exercising any right of Landlord under this Lease, including, without
limitation, any right consequent upon an Event of Material Default.
Section 1110. Miscellaneous
(a) Contemporaneously with the execution of this Lease, Landlord and Tenant
shall execute, acknowledge and record in the Official Records of the County of Marin, State of
California, the Memorandum of Lease in the form attached as Exhibit C and incorporated herein
by reference.
(b) The captions used herein are for convenience of reference only and are not
a part of this Lease and do not in any way limit or amplify the terms and provisions hereof.
(c) Time is of the essence of each and all of the agreements, covenants and
conditions of this Lease.
(d) This Lease shall be interpreted in accordance with and governed by the
laws of the State of California. The language in all parts of this Lease shall be, in all cases,
construed according to its fair meaning and not strictly for or against Landlord or Tenant, it
being agreed that both parties were represented by counsel and that this Lease was fully
negotiated between the parties.
(e) This Lease and the agreements referenced herein constitute the entire
agreement between Landlord and Tenant with respect to the subject matter hereof and supersede
all prior offers and negotiations, oral and written. This Lease may not be amended or modified
in any respect whatsoever except by an instrument in writing signed by Landlord and Tenant.
W
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease by proper
persons thereunto duly authorized as of the date first hereinabove written.
ATTEST
City Clerk
TENANT:
CITY OF SAN RAFAEL, a charter city
By:
Name:
Title:
LANDLORD:
EAST SAN RAFAEL LAND COMPANY, LLC, a
California limited liability company
By:
Name:
Title:
By:
Name:
Title:
29
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
[To Be Inserted]
A-1
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EXHIBIT B
PERMITTED EXCEPTIONS
[To Be Inserted]
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EXHIBIT C
MEMORANDUM OF LEASE
RECORDING REQUESTED BY
City of San Rafael
WHEN RECORDED MAIL TO:
Goldfarb & Lipman
One Montgomery Street
Telesis Tower, 23rd Floor
San Francisco, CA 94104
ATTN: Lee C. Rosenthal
MEMORANDUM OF LEASE
This Memorandum of Lease ("Memorandum") is entered into as of the day of
2000, by and between the CITY OF SAN RAFAEL ("Tenant"), a charter city, and EAST SAN
RAFAEL LAND COMPANY, LLC ("Landlord"), a California limited liability company, with
respect to that certain Ground Lease (the "Lease") dated , 2000, between Landlord and
Tenant.
Pursuant to the Lease, Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord the real property more particularly described in Attachment No. 1, attached hereto,
which real property is located in the City of San Rafael, Marin County, California. The Lease is
for a term commencing on , and ending on
This Memorandum is solely for recording purposes and shall not be construed to alter,
modify, amend or supplement the Lease, of which this is a memorandum.
C-1
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease by proper
persons thereunto duly authorized as of the date first hereinabove written.
TENANT:
ATTEST CITY OF SAN RAFAEL, a charter city
By:
City Clerk Name:
Title:
LANDLORD:
EAST SAN RAFAEL LAND COMPANY, LLC, a
California limited liability company
By:
Name:
Title:
By:
Name:
Title:
C-2
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EXHIBIT D
DESCRIPTION OF THE ADJACENT PROPERTY
[TO BE INSERTED]
D-1
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